Opinion
2013-11-20
In the Matter of AUTOONE INSURANCE COMPANY, appellant, v. Anthony SARVIS, et al., respondents.
Picciano & Scahill, P.C., Westbury, N.Y. (Albert James Galantan of counsel), for appellant. John C. Buratti, New York, N.Y. (Julie M. Sherwood of counsel), for respondent New Hampshire Insurance Company.
Picciano & Scahill, P.C., Westbury, N.Y. (Albert James Galantan of counsel), for appellant. John C. Buratti, New York, N.Y. (Julie M. Sherwood of counsel), for respondent New Hampshire Insurance Company.
MARK C. DILLON, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, AutoOne Insurance Company appeals from an order of the Supreme Court, Kings County (Kurtz, Ct. Atty. Ref.), dated December 3, 2012, which, after a framed issue hearing, denied the petition.
ORDERED that the order is affirmed, with costs.
When an insurer disclaims coverage, “the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (General Acc. Ins. Group v. Cirucci, 46 N.Y.2d 862, 864, 414 N.Y.S.2d 512, 387 N.E.2d 223). “It is only in the event of noncompliance by both the insured and the injured claimant that the insurer may validly disclaim against the injured party” (American Transit Ins. Co. v. Sartor, 3 N.Y.3d 71, 77 n. 2, 781 N.Y.S.2d 630, 814 N.E.2d 1189). A disclaimer of coverage based only on the insured's failure to comply with the notice provisions of a policy is ineffective against the injured party and the insurer will be precluded from subsequently disclaiming coverage on the ground that the injured party failed to comply with the policy's notice provisions ( see General Acc. Ins. Group v. Cirucci, 46 N.Y.2d at 864, 414 N.Y.S.2d 512, 387 N.E.2d 223; Loeffler v. Sirius Am. Ins. Co., 82 A.D.3d 1172, 1173, 923 N.Y.S.2d 550; Vacca v. State Farm Ins. Co., 15 A.D.3d 473, 474–475, 790 N.Y.S.2d 177; Hereford Ins. Co. v. Mohammod, 7 A.D.3d 490, 491, 776 N.Y.S.2d 87; Matter of State Farm Mut. Auto. Ins. Co. v. Joseph, 287 A.D.2d 724, 724–725, 732 N.Y.S.2d 66; Hazen v. Otsego Mut. Fire Ins. Co., 286 A.D.2d 708, 709, 730 N.Y.S.2d 156; Vanegas v. Nationwide Mut. Fire Ins. Co., 282 A.D.2d 671, 671, 723 N.Y.S.2d 516; Eagle Ins. Co. v. Ortega, 251 A.D.2d 282, 283, 674 N.Y.S.2d 56; United States Liab. Ins. Co. v. Young, 186 A.D.2d 644, 645, 588 N.Y.S.2d 640).
Contrary to the appellant's contention, the disclaimer of coverage sent by the respondent New Hampshire Insurance Company (hereinafter NHIC), was not based solely on the insured's failure to comply with the notice requirements of the subject policy ( compare Loeffler v. Sirius Am. Ins. Co., 82 A.D.3d at 1173, 923 N.Y.S.2d 550), and it was otherwise sufficient to specifically apprise the injured claimant that “noncompliance by both the insured and the injured claimant” provided the basis for the disclaimer against the injured claimant (American Transit Ins. Co. v. Sartor, 3 N.Y.3d at 77 n. 2, 781 N.Y.S.2d 630, 814 N.E.2d 1189; compare Vanegas v. Nationwide Mut. Fire Ins. Co., 282 A.D.2d at 671, 723 N.Y.S.2d 516; State Farm Mut. Auto. Ins. Co. v. Cooper, 303 A.D.2d 414, 414, 756 N.Y.S.2d 87). Contrary to the appellant's further contentions, NHIC established that it was prejudiced by the injured claimant's failure to provide timely notice ( see Vacca v. State Farm Ins. Co., 15 A.D.3d at 474–475, 790 N.Y.S.2d 177), and NHIC's disclaimer of coverage was timely ( see O'Garro v. State Farm Fire & Cas. Ins. Co., 96 A.D.3d 1027, 1028, 946 N.Y.S.2d 896). Accordingly, the Supreme Court properly denied the petition.